I’ve been trying to write a post about Buffalo’s Common Council for days now. But focusing on the ways such an uninspiring legislative body functions is, well, depressing. To boot, summer weather has finally arrived in Western New York.

So, I’m going to embrace the suggestion from a trusted friend and sometime “guardian angel.” Rather than pen another gloomy post involving Council President Darius Pridgen, South District Council Member Chris Scanlon, or Delaware District’s Joel Feroleto, etc., I will share some photographs that I took on the sunny and breezy final day of June, 2019 along Buffalo’s shoreline.

But, first, I must split a hair.

My environmental allies, the fishing public, the media, State officials, the Erie Canal Harbor Development Corporation (ECHDC), and virtually every knowledgeable and sensible WNY’er that I’ve encountered, would agree that the pictures that follow were snapped on my trek around the southern portion of Buffalo’s Outer Harbor.

However, the City of Buffalo’s Common Council, at the recommendation of Mayor Byron Brown’s Office of Strategic Planning, excluded from the definition of the “Outer Harbor” contained in the “Green Code” [officially, Uniform Development Ordinance] everything south of the former Ford complex (Terminal A and Terminal B). In doing so, our esteemed legislators have excluded, from the protections of criteria intended to protect the Outer Harbor from inappropriate future development, the following: the former Freezer-Queen parcel (where Gerry Buchheit may or may not still wish to construct a 23-story glass-and-steel tower), the Small Boat Harbor, Buffalo Harbor State Park, Gallagher Beach, the Tifft Street Pier, etc. [Note: Here’s how the city in its proposed LWRP, the ECHDC, and State DEC, interpreted the boundaries of the Outer Harbor prior to Mr. Buchheit’s proposed Queen City Landing tower at the former Freezer-Queen site: Outer Harbor defined by LWRP-ECHDC-DEC.]

In other words, the enlightened world will think of the following photos as images of Our Outer Harbor. I hope you’ll enjoy them:

And, here are my favorite images for what you will not see – the proposed 23-story tower!

With All Due Respect,

Art Giacalone

P.S. Please contact Buffalo’s Common Council Members (especially South District Councilman Christopher Scanlon), as well as the Mayor’s office, and insist that the Green Code be amended immediately to include ALL of the Outer Harbor in the “Outer Harbor boundaries” as defined at Section 5.3.3C(1)(a) of the Uniform Development Ordinance. Thank you.

[Full disclosure: As a zoning and development lawyer, I spent years reviewing, critiquing and commenting on the Green Code (in the Buffalo News, ArtVoice, Buffalo Law Journal, etc.). I also spent nearly a decade representing property owners in the vicinity of the Elmwood/Forest intersection in opposition to various proposed projects and in an effort to prevent demolition of the 11 buildings at that intersection. I met with and shared my concerns with Councilmember Feroleto regarding both the Green Code and the Chason Affinity project as far back as November 2015.]

Joel P. Feroleto was sworn in as Delaware District councilmember on September 1, 2015. When asked to describe the role of a Common Council member, he answered: “to be there for their constituents, and resolve all their issues.”

During the first few months of Joel’s service on Buffalo’s Common Council, the State’s Historic Preservation Office [SHPO] was in the process of deciding whether a significant portion of the Delaware District, nestled on the east side of Elmwood Avenue, was worthy of preservation and placement on the State and National Register of Historic Places. During the review process, SHPO received only a handful of letters objecting to the designation. Two of the objections were from Carl Paladino and William Paladino on behalf of Ellicott Development. A third objection was from an affiliate of the Chason Affinity companies, Affinity Elmwood Gateway Properties, owners of eleven properties located on the southeast corner of Elmwood and Forest avenues. [You can find the objection letters at pages 582, 583, and 587 of the Elmwood Historic District (East) application packet.Elmwood Historic District EAST application.]

In December 2015, SHPO concluded that the 2,540 properties comprising the “Elmwood Historic District (East)” met the National Register criteria, and in March 2016 the Elmwood Historic District – East was officially entered in the National Register of Historic Places. As expressed in the public announcement, “[T]he National Park Service’s National Register of Historic Places is part of a national program to coordinate and support public and private efforts to identify, evaluate, and protect America’s historic and archeological resources.”

As SHPO explained in a December 2016 letter to the City of Buffalo, a critical factor in determining whether a group of structures merits preservation and placement on the state and national Historic Register is whether they are part of a highly intact collection of historically interrelated buildings. From the perspective of our state’s historic preservation office, each structure, by its existence, contributes to the overall historic environment, whether or not it individually possesses significant historic, cultural, or architectural value. [See SHPO’s 12-19-2016 letter.]

In March 2016, a century or so after the Elmwood Historic District (East) was first developed, the Elmwood neighborhood was remarkably “intact” – more than ninety-six percent (96%) of its buildings were still in existence and considered “contributing properties” worthy of inclusion on the National Register.

You might think that Joel Feroleto, as the Delaware District councilmember, would aggressively fight to preserve each and every contributing building in the historic Elmwood district. You would be wrong.

On March 11 of this year, a pair of Elmwood Village two-family residences, 619 and 621 W. Delavan Avenue, were demolished. Both structures were identified as “contributing” properties in the Elmwood Historic District (East). Councilmember Feroleto, it appears, chose to do nothing to stop this destruction and the resulting diminution of the larger historic district.

As noteworthy as the 2016 designation of the Elmwood Historic District (East) as a National Historic District may be, placement on the National Register was apparently much less significant to Mr. Feroleto than the fact that the buildings were owned by Ellicott Development. According to state records, between October 2016 (the same month the Paladinos expressed their objection to placement of their Elmwood Village properties on the National Register) and September 2018, the various Ellicott Development entities made nine campaign contributions, totaling $1,450, to Joel Feroleto.

Even more troubling, Mr. Feroleto took no meaningful action to insulate eleven century-old structures at the corner of Elmwood and Forest avenues from the proverbial wrecking ball. All eleven buildings were listed as “contributing properties” in the Elmwood Historic District (East). These contiguous properties were owned by another objector to the National Register designation, the Chason Affinity companies. Rather than being viewed as a valuable historic resource, it appears that these structures were considered – by Chason Affinity and Feroleto – as nothing more than obstacles to the developer’s plans for the massive “1111 Elmwood” mixed-use project.

It was September 2016 when Chason Affinity submitted its formal application to City Hall in furtherance of the Elmwood/Forest project. Within 20 days of that filing, Feroleto received a $500 donation from the property owner, another $500 from the project’s architectural firm, and $250 from the law firm representing Chason Affinity. [See Feroleto for Council contributions.] Over the following two years, Feroleto was the recipient of additional contributions from the property’s owner, a principal of Chason Affinity, and the project’s general contractor, as well as a second donation from Chason Affinity’s law firm.

[Note: In case you’re wondering, Councilmember Feroleto also has received significant contributions from other developers and businesses who have had substantial projects approved or under consideration by City Hall. For example: Dash Markets ($3,500), Sinatra ($1,500, TM Montante ($1,000), and Benderson Development ($750).]

Ironically, when asked why he has been unwilling to take steps to protect historic Elmwood Village structures from the wrecking ball, Feroleto points to the “Green Code” – the city’s zoning and development ordinance adopted in 2017. According to the councilmember, the Green Code was intended to expedite the zoning process by eliminating layers of review. In the instance of the proposed W. Delavan Ave. demolitions, complying with the code resulted in no public input.

Conveniently forgotten by Feroleto was another purported goal of the Green Code, one that motivated many Buffalonians to advocate on behalf of the proposed new zoning law: “Respect traditional development patterns… and preserve the city’s architectural heritage and the physical context that supports it.” Also disregarded by the Delaware District councilmember was his role, as a member and sole attorney on the city’s Common Council. in crafting and adopting the Green Code.

The zoning law approved by Joel Feroleto intentionally places economic development as a higher priority than the quality of life of residents and preservation of historic neighborhoods. And, the Green Code omits language formerly included in Buffalo’s zoning ordinance which expressly stated that “demolition of structures for reasons other than to preserve public health, safety and/or welfare are not encouraged.” More significantly, Mr. Feroleto rejected the recommendation from his own community working group that the Green Code require that any demolition in the Elmwood Village business district obtain Planning Board and Common Council approval.

The slow-to-act councilmember recently claimed to be researching an amendment to the Green Code requiring a public hearing – not at the Common Council, but at the Planning Board – when similar demolitions are proposed in a historic district. Obviously, such intentions (if sincere) were “too little, too late.”

Effective options were available if Joel Feroleto had truly wished to serve Delaware District residents and preserve the history and character of the Elmwood Village prior to the Elmwood/Forest and W. Delavan demolitions. He could have swiftly and aggressively requested that the Common Council enact a moratorium barring any demolition (other than for safety reasons) until the councilmembers could consider and vote on an amendment to the Green Code which would require a public hearing and Common Council approval for demolitions within any city or national historic district.

In my opinion, Joel didn’t take any aggressive steps to protect the historic integrity of the Elmwood Village for a simple reason: his “constituents” are the wealthy and the politically-connected developers and businesses, not the ordinary citizen. While he chose to disregard the protective measures proposed by his own community working group prior to adoption of the Green Code, he was certainly “there” for Chason Affinity and Ellicott Development. And, he certainly “resolved their issues” – the pesky presence of century-old structures.

The residents of the Elmwood Village and Delaware District deserve much better. They’ll have an opportunity to do something about that in the voting booth later this year.

I was honored this past year when Sam Magavern, as Executive Director of Partnership for the Public Good, asked me if I would be interested in writing a handbook to assist Western New York residents better understand land use and zoning laws, and more effectively express their concerns about proposed projects or changes in land use laws. When Sam approached me, I was well aware of how tirelessly PPG has worked to provide research and advocacy support to community groups and advocates to improve the quality of life and ensure justice throughout the Buffalo Niagara region.

Although PPG generously attributes the writing of the guide to me, it was, in fact, a team effort. The final version reflects the evenhandedness and editorial insight of Sam Magavern, as well as the “historic preservation” expertise of Jessie Fisher, Executive Director of Preservation Buffalo Niagara. My sincere thanks to both.

“Zoning, land use and construction decisions are made at what I view as the intersection of politics and greed. It’s an unattractive and discouraging place to be if you believe that citizens deserve both an open and fair process, and government officials who truly strive to function lawfully and in a manner intended to benefit society as a whole.”

“As a lawyer who has spent nearly 30 years representing residents in land use and environmental matters, I have lost virtually all confidence in Buffalo City Hall’s willingness and ability to comply with zoning and environmental review laws.”

Equally disappointing, when it comes to preserving the Queen City’s historic and architectural heritage, Buffalo’s pro-development and arrogant decision-makers have refused to listen to, or consider, the recommendations of State preservation experts when such advice contradicts a developer’s plans. [See State Historic Preservation office letter re Elmwood/Forest project: SHPO’s 12-19-2016 letter] This myopic stance was tangibly demonstrated in 2017 when, following the “leadership” of Councilmember Joel Feroleto, the Common Council made decisions which led to the demolition of 10 century-old buildings in the Elmwood Village to make room for a massive, incongruous, mixed-development project.

More recently, this position was formalized, at the urging of Councilmember Christopher Scanlon, in a resolution adopted by Buffalo’s Common Council on October 2, 2018 (in furtherance of Maritime Charter School’s Buffum Street expansion plans): “… As a municipal entity, the Common Council is not required to take advice from or consult with New York State Historic Preservation Office (SHPO) in any way.” [See Common Council Resolution rescinding special use permit 10-02-2018]

Sophisticated and politically-connected developers, emboldened by their lawyers, have learned to work in concert with compliant government officials to circumvent and maneuver through zoning laws and SEQRA requirements. The only way to reverse this tidal wave will be through persistent vigilance and hard work on the part of residents and community advocates.

I hope PPG’s handbook will assist those efforts as we strive to protect and enhance the character and integrity of our neighborhoods and communities throughout Western New York.

UPDATE Dec. 30, 2017: When I originally posted this piece on 12/27, destruction of a dozen century-old buildings was still in progress at the southeast corner of Elmwood and Forest avenues. Each structure that was being destroyed was a contributing resource to the nationally listed “Elmwood Historic District (East).” [See SHPO’s 12-19-2016 letter] Prior to Chason Affinity’s commencement of demolition activities, the Elmwood Historic District was “highly intact” and proudly represented the City of Buffalo’s turn-of-the-twentieth-century economic, social and architectural zenith. I returned to the scene of destruction on December 29, and photographed the mud and mounds of rubble where two two-family residences had stood for a century on the south side of Forest Avenue between Elmwood and Granger Place. I wanted to capture the image of “the last house standing” – the double owned by my friend and former client, Sandra Girage, who has courageously fought alongside her neighbors to preserve the character of the neighborhood she loves. [I have added images of the Forest Ave. portion of Chason Affinity’s “devolution by design” at the end of this post.] In my opinion – as the attorney who, until the latest judicial challenge, represented the opponents to the series of project’s proposed for the southeast corner of Elmwood & Forest – the multi-year legal, political, and judicial steps that have led to this inexcusable tattering of the Elmwood Village’s historic urban fabric epitomize the broken nature of Buffalo’s zoning, land use, and environmental processes.

THE LAST HOUSE STANDING ON THE FOREST AVE. BLOCK THAT WAS 100% RESIDENTIAL PRIOR TO CHASON AFFINITY:

The August 21, 2017 print version of the Buffalo Law Journal published my column – titled “Is Buffalo’s Green Code dead?” – which replies to Assemblyperson Sean Ryan’s tweet, following the July 19 approval of a fistful of variances for Chason Affinity’s “1111 Elmwood” project, proclaiming, “That’s it for the Buffalo Green Code…”

Here’s my basic premise: What died when the ZBA approved the Chason Affinity project is the optimistic-but-misguided belief that the Green Code would provide residents with a meaningful tool to protect and enhance the quality of life and historic fabric of Buffalo’s neighborhoods. What remains intact and thriving is the true intent of the authors of the UDO: implementation of a land use law that, in the words of a City Hall press release, “promotes investment” by offering developers “predictable administration and by-right development.”

Delaware District Councilmember Joel P. Feroleto has an impressive pedigree. His mother, the Hon. Paula L. Feroleto, was elected a State Supreme Court Justice in 2004, and has functioned as the Administrative Judge for the 8-county Eighth Judicial District since 2009. His father, John P. Feroleto, is a well-respected personal injury lawyer, known for his hard work and trial skills.

No matter the reason, I am thoroughly discouraged by Joel Feroleto’s handling of Chason Affinity’s proposed mixed-use “1111 Elmwood” project at the southeast corner of Elmwood and Forest avenues. I expected the Common Council’s only lawyer to fight for the integrity of the zoning and development process, and to attempt to preserve the letter and spirit of the City’s most significant piece of legislation in many years – the Uniform Development Ordinance (UDO), known informally (and, misleadingly) as the “Green Code.”

[Full disclosure: For large portions of the past ten years, I have represented and assisted in various ways residents and property owners on Granger Place and Forest Avenue fighting to preserve the character of their historic Elmwood Village neighborhood and prevent the demolition of century-old buildings.]

The sources of my disappointment in Joel are many. Here’s a partial list:

Timing of political contributions. On September 7, 2016, Chason Affinity’s team of consultants officially submitted the developer’s application in furtherance of the “1111 Elmwood” project. In addition to site plan approval from the City Planning Board, and variances from the Zoning Board of Appeals (ZBA), the proposed development could not proceed without obtaining two important approvals from the Common Council: a rezoning of two Forest Avenue parcels, and a restricted use permit to allow demolition of eleven existing structures.

Within 20 days of the 1111 Elmwood project filing, Councilmember Feroleto received the following contributions from the Chason Affinity team: $500 from the property owner, Affinity Elmwood Gateway Properties; $500 from Chason Affinity’s architectural firm, Camina Wood Morris; and, $250 from Chason Affinity’s lawyers, Bond, Schoeneck & King. None of these contributors had donated to Joel’s councilmanic campaign prior to the filing of the 1111 Elmwood application.

Joel also received a September 19, 2016 donation of $500 from Gerald Buchheit. The general contractor for Chason Affinity’s proposed Elmwood/Forest project, RP Oak Hill Building Co., happens to be Buchheit’s partner in developing Queen City Landing, the controversial 23-story, glass-and-steel tower on Buffalo’s Outer Harbor. [Note: Councilmember Feroleto voted to approve the restricted use permit for the 23-story tower in June 2016, despite the fact that the proposed Green Code called for a 6-story building height maximum for the Fuhrman Blvd. site.]

Given an attorney’s obligation to be keenly aware of even the appearance of a conflict-of-interest, it would have been admirable and appropriate for Joel – in his role as the only lawyer on Buffalo’s Common Council – to give back the donations he received from the Chason Affinity team in light of the pending 1111 Elmwood project.

Note: Speaking of political contributions, Councilmember Feroleto received a $1,000 contribution from Mayor Byron Brown’s “Brown for Buffalo” campaign in October 2015. That’s one way for a city’s chief executive to convince a legislator not to rock the proverbial boat.

Refusal to take leadership role. I contacted Joel and Councilmember David Rivera (whose district also includes a portion of the Elmwood Village) early in October 2016. [I did not know at that time of the political contributions to Feroleto from the Chason Affinity team.] I urged the two legislators to take two steps to help preserve the unique character of the Elmwood Village:

First, have the Common Council seek “lead agency” status under the State Environmental Quality Review Act (SEQRA) to ensure that potential adverse impacts of the proposed project would be fully and objectively analyzed. My email message to Feroleto and Rivera included the following statement:

“It would not serve the residents of Buffalo for its legislative body to allow critical determinations that may impact the Elmwood Village for decades – and severely impact the character of the city’s most attractive neighborhood – to be made by another entity, no matter what justification you may put forth. Being lead agency on this one project should not require an overwhelming amount of time or effort – there are experienced residents who will gladly assist you. And, importantly, pursuant to SEQRA, as lead agency, the Common Council has the authority under the SEQRA regulations, to retain an outside consultant to review the project sponsor’s DEIS at the expense of the project sponsor: “… [T]he lead agency may charge a fee to the applicant in order to recover the actual costs of … reviewing the draft and/or final EIS.” [See 6 NYCRR 617.13(a).]”

To my chagrin, Joel provided the following excuse for not seeking lead agency status: “The Common Council already has too much on its plate.

Second, promptly commence the proper steps needed to lawfully enact a moratorium on development, either city-wide or in select neighborhoods such as the Elmwood Village, until the proposed Green Code was enacted and placed into effect. [I even offered to prepare the first draft of the necessary papers.]

I never received a response in any form from Councilmember Feroleto regarding a moratorium. He most likely found the thought of taking this bold step too controversial, and contrary to the Mayor’s wishes.

Parroting of the developer’s positions. For the past half year or so, conversations with Joel regarding the Chason Affinity project became increasingly frustrating. Whether the Councilmember initiated a topic, or replied to my perspective on pertinent issues, the words that came out of his mouth consistently echoed Chason Affinity’s positions (although the Councilmember would not publicly confirm that he was in favor of the project). For example:

*** Although the State Office of Historic Preservation concluded that the proposed demolition of the 11 century-old building would have a significant adverse impact on the Elmwood Village Historic District (East), [see SHPO’s 12-19-2016 letter] Joel took the position that the actual impact would not be great because none of the individual building has substantial architectural or historic significance.

*** Although none of the existing structures on Chason Affinity’s property, the adjoining Granger Place and Forest Avenue residences, the commercial buildings across Elmwood Avenue from the proposed 1111 Elmwood site, or the single-family homes on the east side of Elmwood Avenue north of Forest Avenue, exceed two-and-a-half stories in height, Joel insisted that Chason Affinity’s 4-story, 315-foot wide building would not be out-of-scale with the adjoining neighborhood because the stepped-back upper floors and various facades along Elmwood Avenue would give the impression from street level of multiple, three-story buildings.

*** Despite the fact that the various projects proposed by Chason Affinity during its eight years of owning the properties at the southeast corner of Elmwood & Forest never complied with the existing zoning laws, and never reflected the character and scale of the Elmwood Village, Joel praised the developer for being open, transparent, and willing to compromise.

Lack of willingness to fight for the integrity of Green Code/zoning process. During the weeks preceding the recent public hearing before the ZBA regarding the proposed 1111 Elmwood project, I sent emails and supporting documentation to Councilmember Feroleto of a number of significant defects in Chason Affinity’s application that had been ignored by the city’s Planning Department, including, for example, the following:

(i) The developer had failed to follow the proper procedures – including a public hearing before the City Planning Board – when it allegedly consolidated its ten (10) Elmwood Ave. parcels into one 321.5-foot wide lot in the fall of 2016. Under the Green Code/UDO, no more than 2 lots can be combined on Elmwood Avenue if they had not been consolidated prior to the enactment of the Green Code.

(ii) The Green Code/UDO requires a project sponsor to “select” one building type it proposes to construct, and then comply with the standards for that building type. Chason Affinity’s proposed project violates this requirement by treating its proposed structure as both a “Commercial Block” building where convenient, and “Stacked Units” building where a Commercial Block building is inappropriate.

(iii) The Green Code/UDO requires the ground floor of a “Commercial Block” building – the type of building allowed on the Elmwood Avenue portion of the Chason Affinity property – to consist of “retail or service uses” only. Despite this mandate, 153-feet of the Elmwood Avenue frontage of the proposed project contains residential condominium units, and not the required commercial uses.

Joel never addressed these issues in his replies to my emails, and, to my knowledge, never publicly discussed or acknowledged these defects in the Chason Affinity application. Disturbingly, Councilmember Feroleto appears not to care that what many residents consider the Common Council’s most significant legislative accomplishment in decades – the Green Code -was being disregarded by Mayor Brown’s planning staff.

Preference for Penhurst Park elites and popularity polls.

Our state’s highest court made it clear nearly a half-century ago that zoning determinations must be “more than just a Gallup poll.” That reminder fell on deaf ears as Joel – finally breaking his public silence – endorsed the Chason Affinity project at the June 21st ZBA public hearing. According to a Buffalo News article, “Feroleto noted that ‘there is significant support’ in the ‘immediate neighborhood’ around the project, citing letters and petitions to the ZBA from 80 percent of homeowners on Penhurst Place (sic)…”

Councilmember Feroleto’s embrace of the position taken by Penhurst residents – whose enclave of high-priced homes lies outside of the Elmwood Village boundaries and is protected from any direct adverse impacts associated with the demolition, construction, or operation of the Chason Affinity project – rather than the concerns expressed by adjacent Granger Place and Forest Avenue residents, or the plight of the students and non-affluent tenants being displaced by Chason Affinity’s eviction notices, says volumes about Joel, his values, and how he arrives at his decisions as an elected legislator.

[A version of this post was published by The Public on June 14, 2017 under the headline, “Elmwood-Forest and the Green Code.” You can read it here.]

The City of Buffalo’s long-touted new zoning law – the Uniform Development Ordinance (UDO) or “Green Code” – has been in effect citywide for two months. Is that too short a time period for members of Mayor Byron Brown’s planning staff to familiarize itself with its provisions and apply its requirements to Chason Affinity’s proposed “1111 Elmwood” project at the southeast corner of Elmwood and Forest avenues?

Or, are we just seeing more of the same from the ninth floor of City Hall? That is, are the staff members of the Mayor’s Office of Strategic Planning (headed by Executive Director Brendan Mehaffy), and the city’s Division of Planning (under the leadership of Nadine Marrero) being willfully indifferent or blind to zoning, planning and environmental requirements that might slow down or derail a proposed development project?

I’m not in a position to know with certainty whether it is ignorance, indifference, incompetence, or some unidentified reason. What I do know is that Chason Affinity’s project is not being held to the requirements of either the former zoning ordinance or newly-enacted Green Code/UDO. While an excellent report by WBFO’s Chris Caya diplomatically includes a question mark in its headline – Does proposed Elmwood Village project violate the Green Code? – the answer, in my opinion, is a clear and unequivocal YES!

Please note, I am not saying – as many well-intentioned individuals have argued – that Chason Affinity should be prohibited from proposing a project that requires “variances” from the specific requirements of the zoning ordinance. Both New York State law and the Green Code/UDO mandate that a property owner or project sponsor have access to the variance process – that is, the ability to apply to the city’s Zoning Board of Appeals [ZBA] in an attempt to demonstrate at a public hearing that he/she should be relieved of a particular requirement in the zoning code.

I’m saying that there are provisions of the Green Code/UDO that Chason Affinity’s proposed project violates, and that the city’s planning staff are, intentionally or otherwise, disregarding those requirements and allowing the application process to proceed without addressing that non-compliance.

If you are interested in the details, please read the letter that I sent on June 5, 2017 to James Comerford, Jr., Commissioner of the City’s Department of Permit & Inspection Services [who is empowered under the Green Code/UDO to provide “written interpretations” of the UDO provisions], and Ms. Marrero [who, as “Zoning Administrator,” is the person who makes a “determination of completeness” when a project sponsor applies for a discretionary approval under the UDO from the Common Council, City Planning Board, or Zoning Board of Appeals (ZBA)]. Here’s a link to that correspondence: Letter to Comerford-Marrero re 1111 Elmwood 06-05-17

And here is a quick summary of the primary areas of non-compliance that I believe the Mayor’s planning staff has so far ignored:

Issue No. 1 – Combination of lots

The Green Code/UDO’s “Elmwood Village Standards” include the following provision: “No more than two lots in the Elmwood Village, existing at the time of the adoption of this Ordinance, may be combined for the purposes of new construction in an N-2C or N-2E zone.” Chason Affinity’s Elmwood Ave. property is located in an N-2C zoning district, and consists of 10 lots, extending 321.5 feet.

Chason Affinity claims that it combined these lots in 2016, but has not provided any public support for that assertion. There was only one lawful way in 2016 for the project sponsor to consolidate its lots: obtain approval of such consolidation from the City Planning Board after a public hearing. Zoning Administrator Marrero has stated in a recent email that consolidation of the Chason Affinity parcels was not completed through the Planning Department, but, apparently, through “Assessments.”

Despite the apparent failure of Chason Affinity to lawfully combine “more than two lots”, Ms. Marrero has allowed the proposed 1111 Elmwood project to proceed before the Planning Board and – as currently scheduled – the ZBA on June 21, without addressing this significant issue. While Chason Affinity’s 10-lot combination extends over 320’ on Elmwood Avenue, the two-lot limitation would restrict the Elmwood Ave. frontage – and, the length of the building – to less than 82 feet – and would eliminate the need to demolish 8 of the ten of the existing century-old buildings.

The Green Code/UDO is clear. A project sponsor must “select” which allowed building type it proposes to construct, and then comply with the standards for that building type. This form-based approach to zoning was an integral feature of the new zoning code. But Chason Affinity has failed to comply with this requirement, and is attempting to have its building treated as both a Commercial Block building where convenient, and Stacked Units building where a Commercial Block building is inappropriate.

The most disturbing aspect of this issue is that the Zoning Administrator and City Planning Board are allowing the project sponsor to get away with this flagrant disregard of this basic Green Code/UDO requirement.

Whether or not the intention of the Green Code/UDO is to permit a “hybrid” building, the residential-only portions of the proposed monolith – the southern portion of the Elmwood Ave. frontage, and the portion of the building located at 605 and 607 Forest Ave. – violate a number of the requirements for a “Commercial Block” building and “Stacked Unit” buildings.

City Hall has treated the Chason Affinity application as “complete” without requiring the project sponsor to apply for additional variances despite the following examples of non-compliance with Green Code/UDO requirements:

(a) The residential-only portion of the building located at 605-607 Forest Ave. violates the following “Stacked Units” requirements: (i) there appears to be no “shared entry”; (ii) it lacks a second side yard (which would make it a free-standing structure); and (iii) it appears to lack the required rear yard.

(b) If the “condominium portion” of the building on Elmwood Avenue is a Commercial Block building, as claimed by Chason Affinity, it currently violates the “Commercial Block” requirement that the ground floor consist of “retail or service uses.”

(c) If, in fact, the “condominium portion” of the building on Elmwood Avenue is meant to be a “Stacked Units” building, it violates the Green Code/UDO’s exclusion of “Stacked Units” in the N-2C District. It also lacks the required “shared entry” and second side yard.

Please contact City of Buffalo officials and demand compliance with the Green Code/UDO

Zoning, planning, and environmental laws are meant to be applied as written, not as a project sponsor or Mayor Brown’s Administration wants to interpret it to expedite or ease a project’s construction. If you agree with this sentiment – whether or not you support or oppose Chason Affinity’s project – please contact the following officials by phone, email, letter, or in person, to demand that the law be objectively and fully applied:

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